Do you trust Elish Angiolini et al.?

As regular readers of this blog will be aware, I like to keep an eye on what Holyrood’s Justice Committee gets up to.

Three bills are clogging their legislative arteries at present. The Government’s Sexual Offences (Scotland) Bill is at stage three, while evidence taking sessions are ongoing in the second stage of the Criminal Justice and Licensing Bill. The law-enforcing cherry perched atop the dismal roll of themes and gloomy, parchmenty work of justice is Patrick Harvie’s private member’s bill on offences “aggravated by prejudice” on the “equality strands” of disability, sexual orientation, and transgender identity – properly defined broadly here as encompassing transvestism, transsexualism, intersexuality, persons who have legally changed gender or “any other gender identity that is not standard male or female gender identity”.

Although I suggested that our wedded tribunes of Justitia hardly soaked themselves in glory in the course of their recent fondling deference to the Lord Justice General’s shaky assertions to constitutional monopoly, they’re generally not a bad bunch. Or rather, the more gormless of their number generally conceal their incapacities by nodding judiciously during evidence sessions and declining to engage in extended questioning escapades. Or, in the alternative, if their enthusiasm and desire to participate gets the better of them, they tend to limit themselves to a single, meandering, well meaning, but ultimately defunct intervention. Usually clutching their papers for grim death.

Chief shambolic wobblebottom on the Committee is probably Cathie Craigie. She cobbles together her shivering sentences bit by bit from a dictionary she seems only dimly to comprehend. Her mind furtively and futilely toddles along after those who submit to her ponderous inquisitions, who tend kindly to indulge the poor dear by politely ignoring her more doddering outpourings. Paul Martin – son of the dear guillotined Michael – hardly seems to say anything at all, inheriting a full share of his father’s eloquence and easy wit. Labour fares rather better with their final representative on the Committee in the person of ex-Deputy Leadership candidate Bill Butler. Among the less glottally-stopped of his comrades on the red benches, while I absolutely would not adhere to all or perhaps most of Mr Butler’s views, at least he is capable of articulating them. One even gets a sense he may have a mind of his own, something of a glimmering gewgaw in the faded and desiccated regions of the collective Labourite cranium.

To my understanding, however, Butler doesn’t quite cut the watercress with his party colleagues, and has scrupulously avoided the trial of being called to front bench attention during his nine-odd years in the Parliament since his election to represent Glasgow Anniesland in 2000 following the death of Donald Dewar. But don’t lets forget – the whispering Paul Martin is Fergus Ewing’s penumbra as Minister for Community Safety. He’s his party’s man in the Committee. And the silence is telling. Poor Martin, however, has to report to the lumpen Richard Baker for his punitive orders, an unenviable task whomever it befalls. Hardly a smashing justice line up, there. Whatever MacAskill the verbal orgiast’s shortcomings.

While Labour bashing is always jolly, an interlude for balance. Stewart Maxwell seems more insistent than incisive, and at times more obtuse than insightful. Needless to say, Baillie Bill Aitken presides over his assizes with the characteristic judgemental pertness of a Glasgow worthy. With a Justice of the Peace’s dab hand at mixing condemnatory colours with the multihued human effluences that bespatter the records of Scotland’s lowest courts, he invites, directs, grovels and lets drop legalise, immensely pleased to be in the know.

But back on the positive kilter. As I noted in my hostile review of the Scots judiciary’s submissions on the Sentencing Council part of the Criminal Justice and Licensing (Scotland) Bill, the judges were not wholly exempt from a few choice, doubting questions, albeit overly gently for my tastes. The key Socratic disquisitioners on the Committee are the SNP’s Nigel Don and Robert Brown for the Liberal Demoncrats. Their relative fluency and confidence with the terminology and institutions here is perhaps hardly surprising – both have undergraduate degrees in law. Brown nabbed his LLB (Hons) First Class from Aberdeen University, while Don’s wikipedia entry suggests he studied Law at the University of London. That background is certain to generate confidence. One needn’t stumble over words, relearn concepts, or self-consciously employ them. There is no great mystery to it. It does not require thunderous mental capacities. For those who regard the prating of lawyers with incredulous incomprehension, however, it can be intimidating. The pressure to defer to those who seem to know is significant. Or worse, not to own up that one’s mind is skipping across the gleaming surface of a discussion with all the perceptive force of a stone speculating on the unguessed depths of the ocean.

If all of the Committee seemed cowed by the majesty of Lords Hamilton and Gill, interestingly they gave three police officers a hard time this week. Chief Constable Stephen House of Strathclyde Police and Chief Constable David Strang of Lothian and Borders Police were representing the Association of Chief Police Officers in Scotland. Gordon Meldrum gave evidence in his capacity as the Director General of the Scottish Crime and Drug Enforcement Agency. The points of contention concerned the Serious Organised Crime section of the proposed Bill, contained in the draft in § 25 – 28.

Proposed are a new range of specific offences of involvement in serious organised crime, directing serious organised crime, failure to report serious organised crime and finally, providing for an aggravation of existing offences on account of a context of serious and organised criminality in which they occurred. In the first phase of questioning, both Brown and Don posed some apt questions about the detail – and broad generality – of these sections. As soon as legislation lapses into tautology, one generally ought to be concerned. Here’s the section as drafted:

25 Involvement in serious organised crime

(1) A person who agrees with at least one other person to become involved in serious organised crime commits an offence.

(2) For the purposes of this section and sections 26 to 28 -

“serious organised crime” means crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit a serious offence or a series of serious offences, and “serious offence” means an indictable offence -

(a) committed with the intention of securing a material benefit for any person, or

(b) which is an act of serious violence committed with the intention of securing such a benefit in the future.

(3) A person guilty of an offence under subsection (1) is liable -

(a) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or 10 to a fine not exceeding the statutory maximum or to both.

What is a “serious offence”? As the MSPs pointed out, pretty much anything. “Indictment” refers to trial by jury. Owing to our loose and contingent system, save for a few self-consciously minor charges only competently triable summarily, the vast majority make no stipulations or place no limitation on which court an act should be tried in. It is thus theoretically possible for a shoplifter charged with theft to find themselves before the High Court, arrayed with its fifteen jurors and significant sentencing powers. Of the essence here is prosecutorial discretion. Argued the police folk, basically, you can trust us and the Crown Office. We don’t have enough cash to indulge ourselves in this way. We’ll employ the legislation on “Mr Bigs”, not Master Smalls.

Which, up to a point, is perhaps true.

This is a familiar argument attending most forms of penal legislation where definitions prove difficult, and concrete cases although imaginable, present a difficulty to draftsmen. However, the problem isn’t simply textural. There is also a policied aspect to this. Per the Chief Constables, there is much talk about flexibility in definition. What this amounts to, I would suggest, is a contingent desire for control. Can’t define it up front? Easy, just devolve the power to a conscientious character who can make the right choice in concrete cases, massaging a definition to avoid the morally innocent and carve at the morally guilty with the swift and unerring claymore of justice.

In order to do this, however, it is necessary to make much that is not blameworthy illegal, and trust to the benevolence of the Lord Advocate and her subordinates. The most striking – and to my mind, appalling – example of this trend is the English & Welsh Sexual Offences Act 2003. If its sections are interrogated, that Act makes it an offence for two 15-year-old children to kiss in the classic locus in quo “behind the bike sheds”. Both, potentially, are liable to up to five years imprisonment. Once again, the tired and trusting refrain “prosecutorial discretion” falls from the legislative lips. And we all become slaves to unfettered legal whim. “But only technically…”

It is a conception of law which does not rely on applying general rules to concrete cases, but which makes a rule so general that each case can effectively only be adjudged concretely. It is a campaign of overcriminalisation, and to my mind, excessive concentration of power in the unexamined attitude of prosecutors. While it is not my intention to suggest that they would necessarily exercise these powers improperly, surely this is a contingent point, and limited to the present crop of prosecutorial characters. What of radical social change, when the contingent professionalism which the police officers use to justify their position falls away? Or, what if their claims to universal professionalism in the present prove disingenuous or misinformed? After all, the use of terrorism statutes against the Icelandic Government was not anticipated when it was drafted or voted upon. We won’t use it that way, the ghostly refrain.

Should we believe them? Or should we draft our laws so that it doesn’t matter if we believe them or not – namely in meaningful generality? I have my suspicions of people in uniform inviting me to entrust myself to their good will. The police officers suggest that the present charge available in these circumstances – being involved in a criminal conspiracy – is difficult to prove and unhelpful. When questioned as to why these sections of the Bill would assist them, or more pointedly, why they imagine that it will be easier to prove the offences outlined, I heard no satisfactory answer. Indeed, if the type of evidence needed to prove either offence – either the current offence or the proposed offence – is identical, what is the benefit?

I can appreciate the problems associated with prosecuting the shadowy figures spinning the webs of organised criminality and the problems of what information the police can or cannot disclose in evidence in courts. To their credit, I think members of the Justice Committee have similar doubts about this and the excessive breadth of the section. If, however, it is not clear that the legislative change would be beneficial, and simultaneously is plain that it arbitrarily empowers states officers, I would urge the Committee to act on their little doubting thoughts. Since it is plain that they have them, I would urge the Scottish Government to pay attention. They're talking sense.